135 S. Ct. 2001 | SCOTUS | 2015
Lead Opinion
Federal law makes it a crime to transmit in interstate commerce "any communication containing any threat ... to injure the person of another."
I
A
Anthony Douglas Elonis was an active user of the social networking Web site Facebook. Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook "friends" who are notified when new content is posted. In May 2010, Elonis's wife of nearly seven years left him, taking with her their two young children. Elonis began "listening to more violent music" and posting self-styled "rap" lyrics inspired by the music. App. 204, 226.
*2005Eventually, Elonis changed the user name on his Facebook page from his actual name to a rap-style nom de plume, "Tone Dougie," to distinguish himself from his "on-line persona."
Elonis's co-workers and friends viewed the posts in a different light. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a "Halloween Haunt" event at the amusement park where they worked. In the photograph, Elonis was holding a toy knife against his co-worker's neck, and in the caption Elonis wrote, "I wish." Id.,at 340. Elonis was not Facebook friends with the co-worker and did not "tag" her, a Facebook feature that would have alerted her to the posting. Id.,at 175; Brief for Petitioner 6, 9. But the chief of park security was a Facebook "friend" of Elonis, saw the photograph, and fired him. App. 114-116; Brief for Petitioner 9.
In response, Elonis posted a new entry on his Facebook page:
"Moles! Didn't I tell y'all I had several? Y'all sayin' I had access to keys for all the f***in' gates. That I have sinister plans for all my friends and must have taken home a couple. Y'all think it's too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so f***in' scary?" App. 332.
This post became the basis for Count One of Elonis's subsequent indictment, threatening park patrons and employees.
Elonis's posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. Id.,at 164-165, 207. In the actual sketch, called "It's Illegal to Say ...," a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife:
"Hi, I'm Tone Elonis.
Did you know that it's illegal for me to say I want to kill my wife? ...
It's one of the only sentences that I'm not allowed to say....
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife....
Um, but what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife....
But not illegal to say with a mortar launcher.
Because that's its own sentence....
I also found out that it's incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room....
*2006Yet even more illegal to show an illustrated diagram. [diagram of the house]...." Id.,at 333.
The details about the home were accurate. Id.,at 154. At the bottom of the post, Elonis included a link to the video of the original skit, and wrote, "Art is about pushing limits. I'm willing to go to jail for my Constitutional rights. Are you?" Id.,at 333.
After viewing some of Elonis's posts, his wife felt "extremely afraid for [her] life." Id.,at 156. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Id.,at 148-150. Elonis referred to the order in another post on his "Tone Dougie" page, also included in Count Two of the indictment:
"Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
that was improperly granted in the first place
Me thinks the Judge needs an education
on true threat jurisprudence
And prison time'll add zeros to my settlement ...
And if worse comes to worse
I've got enough explosives
to take care of the State Police and the Sheriff's Department." Id.,at 334.
At the bottom of this post was a link to the Wikipedia article on "Freedom of speech." Ibid.Elonis's reference to the police was the basis for Count Three of his indictment, threatening law enforcement officers.
That same month, interspersed with posts about a movie Elonis liked and observations on a comedian's social commentary, id.,at 356-358, Elonis posted an entry that gave rise to Count Four of his indictment:
"That's it, I've had about enough
I'm checking out and making a name for myself
Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a Kindergarten class
The only question is ... which one?" Id.,at 335.
Meanwhile, park security had informed both local police and the Federal Bureau of Investigation about Elonis's posts, and FBI Agent Denise Stevens had created a Facebook account to monitor his online activity. Id.,at 49-51, 125. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Id.,at 65-66. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called "Little Agent Lady," which led to Count Five:
"You know your s***'s ridiculous
when you have the FBI knockin' at yo' door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
*2007I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin'
[BOOM!]
Are all the pieces comin' together?
S***, I'm just a crazy sociopath
that gets off playin' you stupid f***s like a fiddle
And if y'all didn't hear, I'm gonna be famous
Cause I'm just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism
cause y'all think I'm ready to turn the Valley into Fallujah
But I ain't gonna tell you which bridge is gonna fall
into which river or road
And if you really believe this s***
I'll have some bridge rubble to sell you tomorrow
[BOOM!][BOOM!][BOOM!]" Id.,at 336.
B
A grand jury indicted Elonis for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of
Elonis requested a jury instruction that "the government must prove that he intended to communicate a true threat." Id.,at 21. See also id.,at 267-269, 303. The District Court denied that request. The jury instructions instead informed the jury that
"A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Id.,at 301.
The Government's closing argument emphasized that it was irrelevant whether Elonis intended the postings to be threats-"it doesn't matter what he thinks." Id.,at 286. A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. Id.,at 309. Elonis was sentenced to three years, eight months' imprisonment and three years' supervised release.
Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The Court of Appeals disagreed, holding that the intent required by Section 875(c)is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat.
*2008We granted certiorari. 573 U.S. ----,
II
A
An individual who "transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another" is guilty of a felony and faces up to five years' imprisonment.
Elonis argues that the word "threat" itself in Section 875(c)imposes such a requirement. According to Elonis, every definition of "threat" or "threaten" conveys the notion of an intent to inflict harm. Brief for Petitioner 23. See United States v. Jeffries,
These definitions, however, speak to what the statement conveys-not to the mental state of the author. For example, an anonymous letter that says "I'm going to kill you" is "an expression of an intention to inflict loss or harm" regardless of the author's intent. A victim who receives that letter in the mail has received a threat, even if the author believes (wrongly) that his message will be taken as a joke.
For its part, the Government argues that Section 875(c)should be read in light of its neighboring provisions, Sections 875(b)and 875(d). Those provisions also prohibit certain types of threats, but expressly include a mental state requirement of an "intent to extort." See
The Government takes this expressio unius est exclusio alteriuscanon too far. The fact that Congress excluded the requirement of an "intent to extort" from Section 875(c)is strong evidence that Congress did not mean to confine Section 875(c)to crimes of extortion. But that does not suggest that Congress, at the same time, also meant to exclude a requirement that a defendant act with a certain mental state in communicating a threat. The most we can conclude from the language of Section 875(c)and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section 875(c), but did not identify what mental state, if any, a defendant must have to be convicted.
In sum, neither Elonis nor the Government has identified any indication of a *2009particular mental state requirement in the text of Section 875(c).
B
The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that "mere omission from a criminal enactment of any mention of criminal intent" should not be read "as dispensing with it." Morissette v. United States,
This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim "ignorance of the law is no excuse" typically holds true. Instead, our cases have explained that a defendant generally must "know the facts that make his conduct fit the definition of the offense," Staples v. United States,
Morissette,for example, involved an individual who had taken spent shell casings from a Government bombing range, believing them to have been abandoned. During his trial for "knowingly convert[ing]" property of the United States, the judge instructed the jury that the only question was whether the defendant had knowingly taken the property without authorization.
By the same token, in Liparota v. United States,we considered a statute making it a crime to knowingly possess or use food stamps in an unauthorized manner.
To take another example, in Posters 'N' Things, Ltd. v. United States,this Court interpreted a federal statute prohibiting the sale of drug paraphernalia.
And again, in X-Citement Video,we considered a statute criminalizing the distribution of visual depictions of minors engaged in sexually explicit conduct.
When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute "only that mens reawhich is necessary to separate wrongful conduct from 'otherwise innocent conduct.' " Carter v. United States,
Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. The "presumption in favor of a scienter requirement should apply to eachof the statutory elements that criminalize otherwise innocent conduct." X-Citement Video,
Elonis's conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct-awarenessof some wrongdoing." Staples,511 U.S., at 606-607,
The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant "comprehended [the] contents and context" of the communication. Brief for United States 29. The Government gives two examples of individuals who, in its view, would lack this necessary mental state-a "foreigner, ignorant of the English language," who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents.
In support of its position the Government relies most heavily on *2012Hamling v. United States,
This holding does not help the Government. In fact, the Court in Hamlingapproved a state court's conclusion that requiring a defendant to know the character of the material incorporated a "vital element of scienter" so that "not innocent but calculated purveyance of filth ... is exorcised." Id.,at 122,
Contrary to the dissent's suggestion, see post,at 2019 - 2020, 2022 - 2023 (opinion of THOMAS, J.), nothing in Rosen v. United States,
* * *
In light of the foregoing, Elonis's conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state. That understanding "took deep and early root in American soil" and Congress left it intact here: Under Section 875(c), "wrongdoing must be conscious to be criminal." Morissette,
There is no dispute that the mental state requirement in Section 875(c)is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. See Tr. of Oral Arg. 25, 56. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. See id.,at 8-9. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it. See Department of Treasury, IRS v. FLRA,
*2013Both Justice ALITO and Justice THOMAS complain about our not deciding whether recklessness suffices for liability under Section 875(c). Post,at 2013 - 2014 (ALITO, J., concurring in part and dissenting in part); post, at 2018 - 2019 (opinion of THOMAS, J.). Justice ALITO contends that each party "argued" this issue, post, at 2014, but they did not address it at all until oral argument, and even then only briefly. See Tr. of Oral Arg. at 8, 38-39.
Justice ALITO also suggests that we have not clarified confusion in the lower courts. That is wrong. Our holding makes clear that negligence is not sufficient to support a conviction under Section 875(c), contrary to the view of nine Courts of Appeals. Pet. for Cert. 17. There was and is no circuit conflict over the question Justice ALITO and Justice THOMAS would have us decide-whether recklessness suffices for liability under Section 875(c). No Court of Appeals has even addressed that question. We think that is more than sufficient "justification," post, at 2014 (opinion of ALITO, J.), for us to decline to be the first appellate tribunal to do so.
Such prudence is nothing new. See United States v. Bailey,
We may be "capable of deciding the recklessness issue," post, at 2014 (opinion of ALITO, J.), but following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly.
The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Concurrence in Part
In Marbury v. Madison,
The Court's disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under
This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded-not clarified-the confusion.
There is no justification for the Court's refusal to provide an answer. The Court says that "[n]either Elonis nor the Government has briefed or argued" the question whether recklessness is sufficient. Ante,at 2012 - 2013. But in fact both parties addressed that issue. Elonis argued that recklessness is not enough, and the Government argued that it more than suffices. If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument. In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.
I
Section 875(c)provides in relevant part:
"Whoever transmits in interstate or foreign commerce any communication containing ... any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."
Thus, conviction under this provision requires proof that: (1) the defendant transmitted something, (2) the thing transmitted was a threat to injure the person of another, and (3) the transmission was in interstate or foreign commerce.
At issue in this case is the mens rearequired with respect to the second element-that the thing transmitted was a threat to injure the person of another. This Court has not defined the meaning of the term "threat" in § 875(c), but in construing the same term in a related statute, the Court distinguished a "true 'threat' " from facetious or hyperbolic remarks. Watts v. United States,
Why is recklessness enough? My analysis of the mens reaissue follows the same track as the Court's, as far as it goes. I agree with the Court that we should presume that criminal statutes require some sort of mens reafor conviction. See ante,at 2008 - 2011. To be sure, this presumption marks a departure from the way in which we generally interpret statutes. We "ordinarily resist reading words or elements into a statute that do not appear on *2015its face." Bates v. United States,
For a similar reason, I agree with the Court that we should presume that an offense like that created by § 875(c)requires more than negligence with respect to a critical element like the one at issue here. See ante,at 2010 - 2012. As the Court states, "[w]hen interpreting federal criminal statutes that are silent on the required mental state, we read into the statute 'only that mens reawhich is necessary to separate wrongful conduct from "otherwise innocent conduct." ' " Ante,at 2010 (quoting Carter v. United States,
Once we have passed negligence, however, no further presumptions are defensible. In the hierarchy of mental states that may be required as a condition for criminal liability, the mens reajust above negligence is recklessness. Negligence requires only that the defendant "should [have] be [en] aware of a substantial and unjustifiable risk," ALI, Model Penal Code § 2.02(2)(d), p. 226 (1985), while recklessness exists "when a person disregards a risk of harm of which he is aware," Farmer v. Brennan,
There can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct. In a wide variety of contexts, we have described reckless conduct as morally culpable. See, e.g., Farmer, supra,at 835-836,
*2016Accordingly, I would hold that a defendant may be convicted under § 875(c)if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat. Nothing in the Court's non-committal opinion prevents lower courts from adopting that standard.
II
There remains the question whether interpreting § 875(c)to require no more than recklessness with respect to the element at issue here would violate the First Amendment. Elonis contends that it would. I would reject that argument.
It is settled that the Constitution does not protect true threats. See Virginia v. Black,
Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is made for a " 'therapeutic' " purpose, "to 'deal with the pain' ... of a wrenching event," or for "cathartic" reasons, the threat is protected. Brief for Petitioner 52-53. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. "Taken in context," lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Watts, supra,at 708,
The facts of this case illustrate the point. Imagine the effect on Elonis's estranged wife when she read this: " 'If I only knew then what I know now ... I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.' "
There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel " 'extremely afraid' " and " 'like [she] was being stalked.' " Ibid.Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae4-16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
It can be argued that § 875(c), if not limited to threats made with the intent to harm, will chill statements that do not qualify as true threats, e.g.,statements that may be literally threatening but are plainly not meant to be taken seriously. We have sometimes cautioned that it is necessary to "exten [d] a measure of strategic protection" to otherwise unprotected false statements of fact in order to ensure enough " 'breathing space' " for protected speech. Gertz v. Robert Welch, Inc.,
III
Finally, because the jury instructions in this case did not require proof of recklessness, I would vacate the judgment below and remand for the Court of Appeals to decide in the first instance whether Elonis's conviction could be upheld under a recklessness standard.
We do not lightly overturn criminal convictions, even where it appears that the district court might have erred. To benefit from a favorable ruling on appeal, a defendant must have actually asked for the legal rule the appellate court adopts. Rule 30(d) of the Federal Rules of Criminal Procedurerequires a defendant to "inform the court of the specific objection and the grounds for the objection." An objection cannot be vague or open-ended. It must specificallyidentify the alleged error. And failure to lodge a sufficient objection "precludes appellate review," except for plain error. Rule 30(d); see also 2A C. Wright & P. Henning, Federal Practice and Procedure § 484, pp. 433-435 (4th ed. 2009).
At trial, Elonis objected to the District Court's instruction, but he did not argue for recklessness. Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19-21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 ("Section 875(c)requires proof that the defendant intendedthe charged statement to be a 'threat' " (emphasis in original)); Corrected Brief of Appellant in No. 12-3798 (CA3), p. 14 ("[A] 'true threat' has been uttered only if the speaker acted with subjective intent to threaten" (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a recklessness standard-which the Third Circuit remains free to adopt. Tr. of Oral Arg. 8:22-23 ("[W]e would say that recklessness is not justif[ied]"). I would therefore *2018remand for the Third Circuit to determine if Elonis's failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.
The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmless-error grounds. "We have often applied harmless-error analysis to cases involving improper instructions." Neder v. United States,
Dissenting Opinion
We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prosecutions under
Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for § 875(c). All they know after today's decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough. See ante,at 2012 - 2013.
This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues' policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were "true threats" unprotected by the First Amendment, I would affirm the judgment below.
I
A
Enacted in 1939, § 875(c)provides, "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." Because § 875(c)criminalizes speech, the First Amendment requires that the term "threat" be limited to a narrow class of historically unprotected communications *2019called "true threats." To qualify as a true threat, a communication must be a serious expression of an intention to commit unlawful physical violence, not merely "political hyperbole"; "vehement, caustic, and sometimes unpleasantly sharp attacks"; or "vituperative, abusive, and inexact" statements. Watts v. United States,
The only dispute in this case is about the state of mind necessary to convict Elonis for making those posts. On its face, § 875(c)does not demand any particular mental state. As the Court correctly explains, the word "threat" does not itself contain a mens rearequirement. See ante,at 2008 - 2009. But because we read criminal statutes "in light of the background rules of the common law, in which the requirement of some mens reafor a crime is firmly embedded," we require "some indication of congressional intent, express or implied, ... to dispense with mens reaas an element of a crime." Staples v. United States,
Under this "conventional mens reaelement," "the defendant [must] know the facts that make his conduct illegal," Staples, supra,at 605,
Our default rule in favor of general intent applies with full force to criminal statutes addressing speech. Well over 100 years ago, this Court considered a conviction *2020under a federal obscenity statute that punished anyone " 'who shall knowingly deposit, or cause to be deposited, for mailing or delivery,' " any " 'obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character.' " Rosen v. United States,
This Court reaffirmed Rosen's holding in Hamling v. United States,
Decades before § 875(c)'s enactment, courts took the same approach to the first federal threat statute, which prohibited threats against the President. In 1917, Congress enacted a law punishing anyone
"who knowingly and willfully deposits or causes to be deposited for conveyance in the mail ... any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, or who knowingly and willfully otherwise makes any such threat against the President." Act of Feb. 14, 1917, ch. 64,39 Stat. 919 .
Courts applying this statute shortly after its enactment appeared to require proof of only general intent. In Ragansky v. United States,
B
Applying ordinary rules of statutory construction, I would read § 875(c)to require proof of general intent. To "know the facts that make his conduct illegal" under § 875(c), see Staples,
General intent divides those who know the facts constituting the actus reusof this crime from those who do not. For example, someone who transmits a threat who does not know English-or who knows English, but perhaps does not know a threatening idiom-lacks the general intent required under § 875(c). See Ragansky, supra,at 645 ("[A] foreigner, ignorant of the English language, repeating [threatening] words without knowledge of their meaning, may not knowingly have made a threat"). Likewise, the hapless mailman who delivers a threatening letter, ignorant of its contents, should not fear prosecution. A defendant like Elonis, however, who admits that he "knew that what [he] was saying was violent" but supposedly "just wanted to express [him]self," App. 205, acted with the general intent required under § 875(c), even if he did not know that a jury would conclude that his communication constituted a "threat" as a matter of law.
Demanding evidence only of general intent also corresponds to § 875(c)'s statutory backdrop. As previously discussed, before the enactment of § 875(c), courts had read the Presidential threats statute to require proof only of general intent. Given Congress' presumptive awareness of this application of the Presidential threats statute-not to mention this Court's similar approach in the obscenity context, see Rosen,
C
The majority refuses to apply these ordinary background principles. Instead, it casts my application of general intent as a negligence standard disfavored in the criminal law. Ante,at 2010 - 2013. But that characterization misses the mark. Requiring general intent in this context is not the same as requiring mere negligence. Like the mental-state requirements adopted in many of the cases cited by the Court, general intent under § 875(c)prevents a defendant from being convicted on the basis of any factbeyond his awareness. See, e.g.,United States v. X-Citement Video, Inc.,
But general intent requires no mental state (not even a negligent one) concerning the "fact" that certain words meet the legaldefinition of a threat. That approach is particularly appropriate where, as here, that legal status is determined by a jury's application of the legal standard of a "threat" to the contents of a communication. And convicting a defendant despite his ignorance of the legal-or objective-status of his conduct does not mean that he is being punished for negligent conduct. By way of example, a defendant who is convicted of murder despite claiming that he acted in self-defense has not been penalized under a negligence standard merely because he does not know that the jury will reject his argument that his "belief in the necessity of using force to prevent harm to himself [was] a reasonable one." See 2 W. LaFave, Substantive Criminal Law § 10.4(c), p. 147 (2d ed. 2003).
The Court apparently does not believe that our traditional approach to the federal obscenity statute involved a negligence standard. It asserts that Hamling"approved a state court's conclusion that requiring a defendant to know the character of the material incorporated a 'vital element of scienter' so that 'not innocent but calculated purveyance of filth ... is exorcised.' " Ante,at 2012 (quoting Hamling,418 U.S., at 122,
The majority's treatment of Rosenis even less persuasive. To shore up its position, *2023it asserts that the critical portion of Rosenrejected an " 'ignorance of the law' defense," and claims that "no such contention is at issue here." Ante,at 2012. But the thrust of Elonis' challenge is that a § 875(c)conviction cannot stand if the defendant's subjective belief of what constitutes a "threat" differs from that of a reasonable jury. That is akin to the argument the defendant made-and lost-in Rosen. That defendant insisted that he could not be convicted for mailing the paper "unless he knew or believed that such paper could be properly or justly characterized as obscene."
D
The majority today at least refrains from requiring an intent to threaten for § 875(c)convictions, as Elonis asks us to do. Elonis contends that proof of a defendant's intent to put the recipient of a threat in fear is necessary for conviction, but that element cannot be found within the statutory text. "[W]e ordinarily resist reading words or elements into a statute that do not appear on its face," including elements similar to the one Elonis proposes. E.g., Bates v. United States,
Elonis nonetheless suggests that an intent-to-threaten element is necessary in order to avoid the risk of punishing innocent conduct. But there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat. For instance, a high-school student who sends a letter to his principal stating that he will massacre his classmates with a machine gun, even if he intended the letter as a joke, cannot fairly be described as engaging in innocent conduct. But see ante,at 2006 - 2007, 2012 - 2013 (concluding that Elonis' conviction under § 875(c)for discussing a plan to " 'initiate the most heinous school shooting ever imagined' " against " 'a Kindergarten class' " cannot stand without proof of some unspecified heightened mental state).
Elonis also insists that we read an intent-to-threaten element into § 875(c)in light of the First Amendment. But our practice of construing statutes "to avoid constitutional questions ... is not a license for the judiciary to rewrite language enacted by the legislature," Salinas v. United States,
II
In light of my conclusion that Elonis was properly convicted under the requirements of § 875(c), I must address his argument that his threatening posts were nevertheless protected by the First Amendment.
A
Elonis does not contend that threats are constitutionally protected speech, nor could he: "From 1791 to the present, ... our society ... has permitted restrictions upon the content of speech in a few limited areas," true threats being one of them. R.A.V. v. St. Paul,
If it were clear that intentional threats alone have been punished in our Nation since 1791, I would be inclined to agree. But that is the not the case. Although the Federal Government apparently did not get into the business of regulating threats until 1917, the States have been doing so since the late 18th and early 19th centuries. See, e.g., 1795 N.J. Laws p. 108; Ill. Rev. Code of Laws, Crim. Code § 108 (1827) (1827 Ill. Crim. Code); 1832 Fla. Laws pp. 68-69. And that practice continued even after the States amended their constitutions to include speech protections similar to those in the First Amendment. See, e.g., Fla. Const., Art. I, § 5 (1838); Ill. Const., Art. VIII, § 22 (1818), Mich. Const., Art. I, § 7 (1835); N.J. Const., Art. I, § 5 (1844); J. Hood, Index of Colonial and State Laws of New Jersey 1203, 1235, 1257, 1265 (1905); 1 Ill. Stat., ch. 30, div. 9, § 31 (3d ed. 1873). State practice thus provides at least some evidence of the original meaning of the phrase "freedom of speech" in the First Amendment. See Roth v. United States,
Shortly after the founding, several States and Territories enacted laws making it a crime to "knowingly send or deliver any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, ... threatening to maim, wound, kill or murder any person, or to burn his or her [property], though no money, goods or chattels, or other valuable thing shall be demanded," e.g., 1795 N.J. Laws § 57, at 108; see also, e.g.,1816 Ga. Laws p. 178; 1816 Mich. Territory Laws p. 128; 1827 Ill. Crim. Code § 108; 1832 Fla. Laws, at 68-69. These laws appear to be the closest early analogue to § 875(c), as they penalize transmitting a communication containing a threat without proof of a demand to extort something from the victim. Threat provisions explicitly requiring proof of a specific "intent to extort" appeared alongside these laws, see, e.g., 1795 N.J. Laws § 57, at 108, but those provisions are simply the predecessors to § 875(b)and § 875(d), which likewise expressly contain an intent-to-extort requirement.
The laws without that extortion requirement were copies of a 1754 English threat statute subject to only a general-intent requirement. The statute made it a capital *2025offense to "knowingly send any Letter without any Name subscribed thereto, or signed with a fictitious Name ... threatening to kill or murder any of his Majesty's Subject or Subjects, or to burn their [property], though no Money or Venison or other valuable Thing shall be demanded." 27 Geo. II, ch. 15, in 7 Eng. Stat. at Large 61 (1754); see also 4 W. Blackstone, Commentaries on the Laws of England 144 (1768) (describing this statute). Early English decisions applying this threat statute indicated that the appropriate mental state was general intent. In King v. Girdwood,1 Leach 142, 168 Eng. Rep. 173 (K.B. 1776), for example, the trial court instructed the jurors that, "if they were of opinion that" the "terms of the letter conveyed an actual threat to kill or murder," "and that the prisoner knew the contents of it, they ought to find him guilty; but that if they thought he did not know the contents, or that the words might import any thing less than to kill or murder, they ought to acquit," id.,at 143, 168 Eng. Rep., at 173. On appeal following conviction, the judges "thought that the case had been properly left to the Jury." Ibid.,168 Eng. Rep., at 174. Other cases likewise appeared to consider only the import of the letter's language, not the intent of its sender. See, e.g., Rex v. Boucher,4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K.B. 1831) (concluding that an indictment was sufficient because "th[e] letter very plainly conveys a threat to kill and murder" and "[n]o one who received it could have any doubt as to what the writer meant to threaten"); see also 2 E. East, A Treatise of the Pleas of the Crown 1116 (1806) (discussing Jepson and Springett's Case,in which the judges disagreed over whether "the letter must be understood as ... importing a threat" and whether that was "a necessary construction").
Unsurprisingly, these early English cases were well known in the legal world of the 19th century United States. For instance, Nathan Dane's A General Abridgement of American Law-"a necessary adjunct to the library of every American lawyer of distinction," 1 C. Warren, History of the Harvard Law School and of Early Legal Conditions in America 414 (1908)-discussed the English threat statute and summarized decisions such as Girdwood. 7 N. Dane, A General Abridgement of American Law 31-32 (1824). And as this Court long ago recognized, "It is doubtless true ... that where English statutes ... have been adopted into our own legislation; the known and settled construction of those statutes by courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority." Pennock v. Dialogue,
Elonis disputes this historical analysis on two grounds, but neither is persuasive. He first points to a treatise stating that the 1754 English statute was "levelled against such whose intention it was, (by writing such letters, either without names or in fictitious names,) to conceal themselves from the knowledge of the party threatened, that they might obtain their object by creating terror in [the victim's] mind." 2 W. Russell & D. Davis, A Treatise on Crimes & Misdemeanors 1845 (1st Am. ed. 1824). But the fact that the ordinary prosecution under this provision involved a defendant who intended to cause fear does not mean that such a mental *2026state was requiredas a matter of law. After all, § 875(c)is frequently deployed against people who wanted to cause their victims fear, but that fact does not answer the legal question presented in this case. See, e.g., United States v. Sutcliffe,
Elonis also cobbles together an assortment of older American authorities to prove his point, but they fail to stand up to close scrutiny. Two of his cases address the offense of breaching the peace, Ware v. Loveridge,
Two of Elonis' cases appear to discuss an offense of sending a threatening letter without an intent to extort, but even these fail to make his point. One notes in passing that character evidence is admissible "to prove guilty knowledgeof the defendant, when that is an essential element of the crime; that is, the quo animo,the intentor design," and offers as an example that in the context of "sending a threatening letter, ... prior and subsequent letters to the same person are competent in order to show the intent and meaning of the particular letter in question." State v. Graham,
B
Elonis also insists that our precedents require a mental state of intent when it comes to threat prosecutions under § 875(c), primarily relying on Watts,
As Elonis admits, Wattsexpressly declined to address the mental state required under the First Amendment for a "true threat." See
The Court's fractured opinion in Blacklikewise says little about whether an intent-to-threaten requirement is constitutionally mandated here. Blackconcerned a Virginia cross-burning law that expressly required " 'an intent to intimidate a person or group of persons,' "
In addition to requiring a departure from our precedents, adopting Elonis' view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech. For instance, the Court has indicated that a legislature may constitutionally prohibit " 'fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction," Cohen v. California,
* * *
There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.
The solution is not to abandon a mental-state requirement compelled by text, history, and precedent. Not only does such a decision warp our traditional approach to mens rea,it results in an arbitrary distinction between threats and other forms of unprotected speech. Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not-and should not-be the case.
Nor should it be the case that we cast aside the mental-state requirement compelled by our precedents yet offer nothing in its place. Our job is to decide questions, not create them. Given the majority's ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule-any clear rule. Its failure to do so reveals the fractured foundation upon which today's decision rests.
I respectfully dissent.
